Filed: Oct. 01, 2008
Latest Update: Feb. 12, 2020
Summary: SLIP OP. 08-105 UNITED STATES COURT OF INTERNATIONAL TRADE _ : GLOBE METALLURGICAL, INC., : : Plaintiff, : v. : Before: Jane A. Restani, Chief Judge : UNITED STATES, : Consol. Court No. 07-00386 : Defendant, : Public Version : and : : DATONG JINNENG INDUSTRIAL : SILICON CO., INC., JIANGXI : GANGYUAN SILICON INDUSTRY : COMPANY, LTD., and SHANGHAI : JINNENG INTERNATIONAL TRADE : CO., LTD., : : Defendant-Intervenors. : _: OPINION [Plaintiff’s motion for judgment on the agency record granted in part
Summary: SLIP OP. 08-105 UNITED STATES COURT OF INTERNATIONAL TRADE _ : GLOBE METALLURGICAL, INC., : : Plaintiff, : v. : Before: Jane A. Restani, Chief Judge : UNITED STATES, : Consol. Court No. 07-00386 : Defendant, : Public Version : and : : DATONG JINNENG INDUSTRIAL : SILICON CO., INC., JIANGXI : GANGYUAN SILICON INDUSTRY : COMPANY, LTD., and SHANGHAI : JINNENG INTERNATIONAL TRADE : CO., LTD., : : Defendant-Intervenors. : _: OPINION [Plaintiff’s motion for judgment on the agency record granted in part;..
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SLIP OP. 08-105
UNITED STATES COURT OF INTERNATIONAL TRADE
_____________________________________
:
GLOBE METALLURGICAL, INC., :
:
Plaintiff, :
v. : Before: Jane A. Restani, Chief Judge
:
UNITED STATES, : Consol. Court No. 07-00386
:
Defendant, : Public Version
:
and :
:
DATONG JINNENG INDUSTRIAL :
SILICON CO., INC., JIANGXI :
GANGYUAN SILICON INDUSTRY :
COMPANY, LTD., and SHANGHAI :
JINNENG INTERNATIONAL TRADE :
CO., LTD., :
:
Defendant-Intervenors. :
_____________________________________:
OPINION
[Plaintiff’s motion for judgment on the agency record granted in part; Defendant-Intervenors’
motion for judgment on the agency record denied.]
Dated: October 1, 2008
DLA Piper US LLP (William D. Kramer, Clifford E. Stevens, Jr., Jack A. Levy,
and Martin Schaefermeier) for the plaintiff.
Gregory G. Katsas, Assistant Attorney General; Jeanne E. Davidson, Director,
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (Loren M. Preheim); William J. Kovatch, Jr. and Aaron Kleiner, Office of
the Chief Counsel for Import Administration, U.S. Department of Commerce, of counsel, for the
defendant.
Mayer Brown LLP (Duane W. Layton, Kristy L. Balsanek, and Sydney H.
Mintzer) for the defendant-intervenors.
Consol. Court No. 07-00386 Page 2
Restani, Chief Judge: This matter is before the court on plaintiff Globe
Metallurgical, Inc.’s (“Globe”) and defendant-intervenors Datong Jinneng Industrial Silicon Co.,
Inc., Jiangxi Gangyuan Silicon Industry Company, Ltd., and Shanghai Jinneng International
Trade Co., Ltd.’s (“Defendant-Intervenors”) motions for judgment upon the agency record
pursuant to USCIT Rule 56.2. Plaintiff, a domestic producer of silicon metal, challenges the
United States Department of Commerce’s (“Commerce”) final determination made in the new
shipper reviews of the antidumping duty order on silicon metal from the People’s Republic of
China (“PRC”). See Silicon Metal from the People’s Republic of China: Notice of Final Results
of 2005/2006 New Shipper Reviews, 72 Fed. Reg. 58,641 (Oct. 16, 2007) (“Final Results”). For
the reasons stated below, the court sustains Commerce’s final determination in part and denies it
in part and therefore, Globe’s motion for judgment on the agency record is granted in part and
denied in part and and Defendant-Intervenors’ motion for judgment on the agency record is
denied.
BACKGROUND
Commerce initiated new shipper reviews of Defendant-Intervenors for the June 1,
2005 through May 31, 2006 period of review (“POR”) of the Antidumping Duty Order: Silicon
Metal From the People’s Republic of China, 56 Fed. Reg. 26,649 (June 10, 1991).1 See Silicon
Metal From the People’s Republic of China: Initiation of Antidumping Duty New Shipper
1
Silicon metal is produced by combining high purity quartz in a “charge” with a source
of carbon and a bulking agent in a submerged arc electric furnace. (Pl.’s Br. in Supp. of Mot. for
J. Upon the Agency R. 6 (“Globe’s Br.”); App. to Pl.’s Br. in Supp. of Mot. for J. Upon the
Agency R. Tab 6, at Ex. 3 (“Globe’s App.”).) The materials are heated at a high temperature and
carbon monoxide is released, leaving molten silicon. (Globe’s Br. 6–7; Globe’s App. Tab 6, at
Ex. 3.)
Consol. Court No. 07-00386 Page 3
Reviews, 71 Fed. Reg. 42,084, 42,085 (July 25, 2006). On October 16, 2007, Commerce
published the final results of the new shipper reviews. See Final Results, 72 Fed. Reg. at 58,641.
Commerce considered the PRC a nonmarket economy (“NME”) country2 for the purpose of
these reviews. Accordingly, it calculated normal value3 pursuant to 19 U.S.C. § 1677b(c), which
requires Commerce to collect data regarding the NME producer’s factors of production4 (“FOP”)
and value them in relation to the prices or costs of the FOP for the subject merchandise produced
in one or more surrogate market economy countries. See 19 U.S.C. § 1677b(c) (2000).
Commerce selected India as its surrogate country for valuing the FOP for Chinese silicon metal,
concluding that although India and Egypt were both significant producers of merchandise
comparable to silicon metal, the data provided for India constituted the best available
information. Issues and Decision Memorandum for the Final Results of 2004/2006 Antidumping
Duty New Shipper Reviews of Silicon Metal from the People’s Republic of China, A-570-806,
POR 6/01/05-5/31/06, at 8–9 (Oct. 9, 2007), available at
http://ia.ita.doc.gov/frn/summary/PRC/E7-20344-1.pdf (“Issues and Decision Memorandum”).
Commerce also found that data from the International Energy Agency (“IEA”) and the World
2
A NME country is “any foreign country that [Commerce] determines does not operate
on market principles of cost or pricing structures, so that sales of merchandise in such country do
not reflect the fair value of the merchandise.” 19 U.S.C. § 1677(18)(A) (2000).
3
Normal value is compared with the United States’ price to determine whether the sales
are made at less than fair value and thus, whether offsetting duties will be imposed, and in what
amount. 19 U.S.C. §§ 1677a, 1677b(a).
4
The factors of production used in the manufacturing of merchandise “include, but are
not limited to [the] (a) hours of labor required, (b) quantities of raw materials employed, (c)
amounts of energy and other utilities consumed, and (d) representative capital cost, including
depreciation.” 19 U.S.C. § 1677b(c)(3).
Consol. Court No. 07-00386 Page 4
Trade Atlas (“WTA”) provided the best information on the record for valuing electricity and
silica fume, respectively, as the alternatives proffered were not reliable.
Id. at 11–12, 25.
Commerce further determined that the quartz consumed was properly classified as Grade I
quartz, as the silicon dioxide and impurity levels matched those provided in the Grade I category
of the Indian Bureau of Mines’ Minerals Yearbook (“IBM Yearbook”) for 2005.
Id. at 20.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court will uphold
Commerce’s final determination in an antidumping investigation unless it is “unsupported by
substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C.
§ 1516a(b)(1)(B)(i).
DISCUSSION
I. Selection of India as a Surrogate Country
“[T]he valuation of the [FOP] shall be based on the best available information
regarding the values of such factors in a market economy country or countries considered to be
appropriate by [Commerce].” 19 U.S.C. § 1677b(c)(1). When applying the FOP methodology,
Commerce selects surrogate values from market economy countries that are “at a level of
economic development comparable to that of the [NME] country” and have “significant
producers of comparable merchandise.” 19 U.S.C. § 1677b(c)(4). Commerce normally selects a
single surrogate country to value all factors, see 19 C.F.R. § 351.408(c)(2), preferring to use “the
country with the best factors data,” Import Administration Policy Bulletin 04.1: Non-Market
Economy Surrogate Country Selection Process at *4 (March 1, 2004), available at
http://ia.ita.doc.gov/policy/bull04-1.html (“Policy Bulletin”).
Consol. Court No. 07-00386 Page 5
In selecting India as the surrogate country, Commerce determined that both India
and Egypt were at a level of economic development similar to that of the PRC. Issues and
Decision Memorandum at 8. Commerce considered ferrosilicon and other ferroalloys
merchandise comparable to silicon metal and determined that India and Egypt were significant
producers of both comparable products.
Id. at 8–9. Commerce concluded that production levels
of ferrosilicon in India have consistently remained at the same historical levels and have matched
Egypt’s ferrosilicon production in recent years.
Id. Commerce also noted that India’s status as a
net importer of ferrosilicon “d[id] not disqualify it from also being considered as a significant
producer of that merchandise as well.”
Id.
Commerce then evaluated and compared the quality of Indian and Egyptian data
for ferrosilicon and other ferroalloy production and concluded that there were many deficiencies
in the data available from Egypt.
Id. Commerce emphasized the importance of using data that
included “investigation or review period-wide price averages, prices specific to the input in
question, prices that are net of taxes and import duties, prices that are contemporaneous with the
period of investigation or review, and publicly available data.” Policy Bulletin at *4; see also
Union Camp Corp. v. United States,
941 F. Supp. 108, 116 (CIT 1996). In rejecting Egypt as a
surrogate, Commerce found that the record included no Egyptian value for charcoal and only a
single price quote for the Egyptian value of both quartz and electricity. Issues and Decision
Memorandum at 9. Commerce also determined that the Indian data were more contemporaneous
because they corresponded to the POR, while the Egyptian data were based on 2005 annual
import statistics.
Id. at 9.
Consol. Court No. 07-00386 Page 6
Defendant-Intervenors argue that Commerce should have first considered whether
India or Egypt produced comparable products to Chinese silicon metal before evaluating each
country’s economic development relative to the PRC. (Def.-Intervenors’ Rule 56.2 Mot. for J.
Upon the Agency R. & Mem. in Supp. Thereof 30–32 (“Def.-Intervenors’ Br.”)); see Policy
Bulletin at *4. Defendant-Intervenors maintain that “comparable merchandise should be
identified narrowly,” and that Commerce should have selected only ferrosilicon as a product
comparable to silicon metal, and not other ferroalloys, which cover a much broader range of
products. (Def.-Intervenors’ Br. 27–29 (quoting Policy Bulletin at *3).) In particular,
Defendant-Intervenors maintain that India cannot be considered a competitive producer of
ferrosilicon because of the relative scarcity of electricity, an important requirement for
production. (Id. at 32–33.) While Defendant-Intervenors acknowledge that the record does not
contain contemporaneous Egyptian data for charcoal and that only a single price quote was
submitted for Egyptian quartz, they maintain that when compared to electricity, the role of
charcoal and quartz in the production process of silicon metal is relatively small. (Id. at 37–38.)
In the alternative, Defendant-Intervenors argue that if the Indian data for charcoal and quartz
values are found to be superior to the Egyptian data, then Commerce should utilize data from
multiple surrogate countries in constructing the normal value of silicon metal because of the
unsuitability of Indian electricity data. (Id. at 38.)
The “process of constructing foreign market value for a producer in a [NME]
country is difficult and necessarily imprecise,” Nation Ford Chem. Co. v. United States,
166
F.3d 1373, 1377 (Fed. Cir. 1999) (citation and quotations omitted), and Defendant-Intervenors
have not demonstrated that Commerce’s decision to use India as a surrogate country should be
Consol. Court No. 07-00386 Page 7
rejected. Commerce evaluated the data on the record and found that both India and Egypt were
comparable market economies to the PRC and significant producers of merchandise comparable
to silicon metal. Issues and Decision Memorandum at 9.
It is undisputed that silicon metal and ferrosilicon are comparable merchandise. It
is unnecessary to address whether the broad category of ferroalloys is comparable. Substantial
evidence supports the conclusion that India produces the narrower category of comparable
merchandise, i.e. ferrosilicon. That being the case, Commerce acted reasonably in turning its
attention to the quality of the available data from India and Egypt. Commerce selected India as
the surrogate country because the quality of the data on the record regarding the valuation of the
FOP for silicon metal in India was superior to that supplied for Egypt.
Further, Commerce was not required to find that India was a competitive producer
of ferrosilicon before selecting it, as the statutory standard requires only that the surrogate
country be a “significant” producer of comparable merchandise, which Commerce found both
Egypt and India to be. See 19 U.S.C. § 1677b(c)(4). While Defendant-Intervenors contend that
India cannot be considered a significant producer of ferrosilicon because of a decline in
production due to high energy costs, Commerce determined that Indian ferrosilicon production
was at 50,000 MT or more from 1998 through 2004, which Commerce concluded was “at least
as high as Egyptian ferrosilicon production in the most recent years for which data is available
for both countries.” Issues and Decision Memorandum at 8–9. Thus, Commerce’s significance
finding was supported.
For the reasons stated above, the court finds that Commerce acted well within its
discretion in determining that India was a proper surrogate country to use in computing the
Consol. Court No. 07-00386 Page 8
normal value of silicon metal and based its decision on substantial evidence.
II. Valuation of Factors of Production
To approximate the normal value of the subject merchandise in NME countries,
“Commerce solicits information from respondents concerning the quantities of various inputs
consumed in producing the subject merchandise, and then uses surrogate values from a similar,
market economy country to value those inputs.” Tianjin Magnesium Int’l Co. v. United States,
533 F. Supp. 2d 1327, 1334 (CIT 2008). Commerce is required to use the “best available
information” when valuing the FOP, based on publicly available information from a market
economy of comparable economic development. 19 U.S.C. § 1677b(c)(1); 19 C.F.R. § 351.408.
Commerce has “broad discretion to determine the ‘best available information’ in a reasonable
manner on a case-by-case basis.” Timken Co. v. United States,
166 F. Supp. 2d 608, 616 (CIT
2001).
A. Electricity
Commerce used data from the IEA to value electricity as a FOP in its final
decision, because it was publicly available information and specific to the input in question.
Issues and Decision Memorandum at 11. The IEA rate of approximately $0.10/KwH was found
to be within the range of national electricity rates of nineteen ferrosilicon-producing countries
cited by Defendant-Intervenors.
Id. Commerce determined that the rate was not “unreliable
simply because it differs from other countries’ electricity rates,” noting that because electricity is
not a traded good, prices vary significantly among countries.
Id. at 12 (citation omitted).
Commerce also highlighted that the IEA electricity rate was used in other recent electricity-
intensive cases.
Id. Commerce also found insufficient evidence to prove that cross-subsidies
Consol. Court No. 07-00386 Page 9
distort industrial electricity rates, citing the same IEA report submitted by Defendant-
Intervenors, which showed that “if subsidies were removed, Indian industrial electricity rates
would not materially change.”
Id.
Defendant-Intervenors argue that although the IEA rate is within the range of
rates of nineteen other ferrosilicon-producing countries, the rate is higher than all but one of
those electricity rates. (Def.-Intervenors’ Br. 21; App. to Mem. of Law in Supp. of Def.-
Intervenors’ Mot. for J. upon the Agency R. Tab K, at Ex. 1 (“Def.-Intervenors’ App.”).)
Defendant-Intervenors contend that the price of industrial electricity in India is distorted by
government subsidies, whereby industrial electricity consumers are charged a higher rate in
order to subsidize the lower rate paid by agricultural and residential electricity consumers.
(Def.-Intervenors’ Br. 13–15 (citing Gov’t of India Planning Comm’n, Integrated Energy Report:
Report of the Expert Committee, at 79 (Aug. 2006), available at
http://planningcommission.nic.in/reports/genrep/rep_intengy.pdf). Defendant-Intervenors
maintain that, as a result, the electricity rates are not reflective of the market-based price that
would exist absent government intervention and submitted instead an Egyptian electricity rate of
$0.022/KwH, which their agent received after soliciting a price quote from the Egyptian
Ministry of Electricity. (See
id. at 15, 25; Def.-Intervenors’ App. Tab B, at Ex. 12, Tab L.)
“While accuracy is a touchstone, Commerce often finds that it has to choose
between two (or more) sub-optimal data sources” and Commerce’s resulting decision will be
upheld if supported by substantial evidence. Dorbest Ltd. v. United States,
462 F. Supp. 2d
1262, 1275 (CIT 2006). When there is a publicly available and valid rate for a FOP from the
chosen surrogate country, Commerce’s normal practice is to value all factors from the same
Consol. Court No. 07-00386 Page 10
surrogate country. See 19 C.F.R. § 351.408(c)(2). Although India subsidizes electricity prices
for agricultural and residential consumers, Defendant-Intervenors failed to submit any evidence
demonstrating that this inflates Indian industrial electricity rates. Issues and Decision
Memorandum at 12. Only a single solicited price quote for electricity in Egypt is on the record.
No other substantial data regarding electricity rates in Egypt has been submitted on the record.
Commerce is not required to choose such a single price quote where other more broadly-based
public information is available and is not shown to be unusable.5
In the alternative, Defendant-Intervenors suggest using the rate of $0.048/KwH,
which represents an average of the country-wide rates in the nineteen countries from the IEA
survey. (Def.-Intervenors’ Br. 25–26.) This average electricity rate, however, encompasses
values from countries, including the United States and Australia, that are at a different level of
economic development than the PRC. Issues and Decision Memorandum at 12. Commerce’s
reasonable preference is to use surrogate values from countries at a level of economic
development similar to that of the NME country in question. Id.; see also 19 U.S.C.
§ 1677b(c)(4)(A).
For the reasons stated above, Commerce did not err in determining that the Indian
industrial electricity rates constituted the best available information for valuing the electricity
input and its determination in that regard is supported by substantial evidence.6
5
It is obvious that there are flaws in each approach to valuing electricity. Defendant-
Intervenors have not made a claim that Commerce’s investigation was inadequate in this regard.
Thus, a selection of an electricity value must be made from the data available.
6
The parties submitted supplemental filings requested by the court concerning how
(continued...)
Consol. Court No. 07-00386 Page 11
B. Silica Fume
Silica fume, a by-product7 created during the production of silicon metal,8 does
not have a specific subheading under the Indian Harmonized Tariff Schedule and is covered by
the basket tariff subheading for all forms of silicon dioxide. Issues and Decision Memorandum
at 24–25; (Globe’s App. Tab 7, at Ex. 13). Commerce used an average unit value (“AUV”) of
silicon dioxide from WTA Indian import data to calculate the normal value of silica fume.
Issues and Decision Memorandum at 24–25.
Globe argues that Commerce has established a practice of selecting surrogate
values that are as product-specific as possible, and that the WTA data is overinclusive because it
includes imports from countries where silica fume is not the primary form of silicon dioxide.
(Globe’s Br. 11.) Globe contends that the inclusion of higher-priced types of silicon dioxide
inflates the normal value of silica fume, resulting in a price that does not reflect the type of silica
6
(...continued)
Indian producers obtain the electricity needed to produce ferrosilicon. While the data provided
are not entirely clear, at least one report cited by all parties indicates that six of the fourteen
Indian ferrosilicon producers who reported their 2001 production capacity to the Indian Bureau
of Mines “have developed or are developing captive power.” (Def.-Intervenors’ App. Tab B, at
Ex. 5.) There is little information provided as to how the remaining producers obtain their
electricity, but the report indicates that some producers’ electricity is purchased from an
instrumentality of the Indian government. (Id.)
7
The value of a by-product is subtracted in the normal value calculation. Thus, a lower
by-product valuation will raise normal value and lead to higher duties, as sought by Globe, the
domestic party.
8
Silica fume is formed when fine particles of silicon dioxide and impurities that escape
from the furnace during the production of silicon metal combine with the gas generated by the
chemical reaction. (Globe’s Br. 7; Globe’s App. Tab 6, at Ex. 3.) It is then filtered and sold as
an additive in concrete and certain heat-resistant brick to offset the cost of silicon metal
production. (Globe’s Br. 7–8; Globe’s App. Tab 6, at Ex. 3.)
Consol. Court No. 07-00386 Page 12
fume sold in India during the POR. (Id. at 10.) Globe also maintains that the relatively high
price of silica fume is at odds with its status as a by-product because the total sales value of silica
fume under the basket tariff category was “anything but small in relation to the value of
[Defendant-Intervenors’] main product, silicon metal.” (Id. at 21.) Globe submitted evidence
showing a lower price during the POR for silica fume in India including an affidavit from an
American silica fume seller listing its prices of silica fume in India during the POR, WTA data
on the AUV of silicon dioxide imports into India during the POR from countries that generate
silica fume, Infodrive India data on the value of silica fume imports during the POR, sales
invoices for silica fume sold in India by Norwegian producer Elkem, and prices for suppliers of
silica fume in India provided by an Indian silica fume expert. (Id. at 10.)
Globe argues that the WTA data used by Commerce to compute the AUV
reflected data from eleven (out of twenty-five) countries that during the POR did not produce
silicon metal or any other product that is a source of silica fume. (Id. at 13.) Globe further
contends that the WTA values Commerce used for seventeen of the countries were aberrational
and that if the WTA data are relied on, only information from the seven countries that produced
silicon metal and exported silicon dioxide to India during the POR should be used. (Id. at 20,
23–24.) The AUV of these exports, according to Globe, was $529 per MT, in comparison to the
$1696 per MT for silicon dioxide calculated by Commerce using all twenty-five countries. (Id.
at 10, 12.)
Alternatively, Globe argues that Commerce should value silica fume using either
two invoices from Elkem, a leading supplier of silica fume in India, or Infodrive data, which,
Globe alleges, contains more product-specific values and better corresponds with the silica fume
Consol. Court No. 07-00386 Page 13
in question. (Id. at 17–19.) Globe argues that because there is a large difference in the value of
silica fume sold for refractory versus concrete applications,9 the use of appropriate grade-specific
values for silica fume from Elkem would be more accurate and reflective of the value of silica
fume generated by Defendant-Intervenors’ silicon metal production. (Id. at 24.) Globe submits
that Elkem’s invoices demonstrate a price of $290 per MT for certain concrete applications and
$675 per MT for certain refractory applications during the POR. (Id. at 34–35.) Globe
maintains that the Infodrive data similarly shows that imports in India during the POR for
Elkem-produced concrete-grade silica fume and refractory grade silica fume had AUVs of $294
per MT and $575 per MT, respectively. (Id. at 33–34.) Globe further argues that the Infodrive
data are more specific and detailed than the WTA data because they provide a “product
description” for each entry detailing “the composition and value” of the types of silicon dioxide
imported into India under the basket category. (Id. at 19, 33.) Thus, Globe contends, the
Infodrive data is more product-specific than the WTA data because they show that during the
POR the AUV of imports for the specific by-product silica fume was $489 per MT. (Id. at 34.)
Commerce rejected data from any individual companies submitted by Globe
because of its preference for using broad market-based averages when available. Issues and
Decision Memorandum at 25. Commerce also rejected the Infodrive India data because of
discrepancies between them and the WTA data.
Id. Specifically, the WTA data showed
8,287 MT of silicon dioxide imported during the POR while the Infodrive India data showed
9
Globe relies on an unsigned statement from an individual in India with alleged
knowledge of the silica fume market to demonstrate that silica fume must have at least 95%
silicon dioxide content to be used in refractory applications, which accounts for its higher price.
(See Globe’s App. Tab 10, at Ex. 3.)
Consol. Court No. 07-00386 Page 14
17,864 MT.
Id. Of the inputs in the Infodrive data, 80% were not subjected to customs duties,
which led Commerce to believe they were not consumption entries and did not reflect the price
paid within the Indian market.
Id. After excluding these entries, the Infodrive India data
consisted of only 3,409 MT of silicon dioxide, and Commerce could not determine if this data
reflected the same information as found in the WTA data.
Id.
Ordinarily, when “faced with a choice between two imperfect options, it is within
Commerce’s discretion to determine which choice represents the best available information.”
Dorbest, 462 F. Supp. 2d at 1277. Here, however, the record does not support Commerce’s use
of the WTA data for all silicon dioxide imports under the basket tariff subheading to determine
the AUV for silica fume. Valuing silica fume based on data for the broader category of silicon
dioxide captures too many products that are not the by-product silica fume. While Commerce
preferred to rely on the WTA data because it could not determine whether the Infodrive data
included a “significant percentage of the WTA data,” Commerce acknowledged that the
Infodrive data still suggested that the WTA data were overinclusive and “may [have] include[d]
higher-valued products.” Issues and Decision Memorandum at 25.
While there are flaws with using each data set to value silicon fume, the court
finds that the best available information is data that better relates to the specific by-product silica
fume. Consequently, Commerce’s decision to value silica fume using WTA data for the broad
basket tariff subheading of silicon dioxide, rather than data relating to the specific input at issue,
was unsupported by substantial evidence. Accordingly, the court remands this issue to
Commerce in order for it to obtain better information for valuing silica fume or to use
information on the record that relates specifically to the by-product silica fume.
Consol. Court No. 07-00386 Page 15
C. Quartz
Commerce based its surrogate value for quartz on the data provided for the
Grade I category of quartz from the IBM Yearbook, which defines Grade I quartz as having a
silicon dioxide content of 98% or more.
Id. at 20; (Globe’s App. Tab 5, at Ex. 12.). Commerce
preferred this data over the price quotes and Grade A valuation proposed by Globe, as this
surrogate value is from a public source, uses a broad market average, and is product-specific.
Issues and Decision Memorandum at 20; see also Policy Bulletin at *4.
Globe argues that the quartz used by Defendant-Intervenors should be categorized
as Grade A quartz, as Jiangxi Gangyuan and Datong Jinneng used quartz with a high silicon
dioxide content.10 (Globe’s Br. 26.) Globe contends that a Grade I categorization of quartz
allows more impurities than the quartz used by Defendant-Intervenors. (Id. at 26–27.)
Globe’s argument is unpersuasive. The 98% silicon dioxide content required
under the Grade I category is only a minimum requirement and quartz with more than the
minimum allowable silicon dioxide content may still be within this grade. Similarly, the amount
of impurities allowed under the Grade I category is merely the maximum quantity of impurities
allowed and does not represent the quantity of impurities that are present in all quartz found
under this grading. Further, Globe does not cite to any official definition of Grade A quartz and
relies instead on the internal grading of two Indian suppliers. (See Globe’s Br. 25–28.)
As the data from the IBM Yearbook on quartz was country-wide and publicly
available and that data was not shown to be unacceptably flawed, Commerce’s decision to use
10
The percentages were [[ ]] and [[ ]], respectively. (Globe’s Br.
(Confidential) 26.)
Consol. Court No. 07-00386 Page 16
the data from the IBM Yearbook instead of Globe’s price quotes was supported by substantial
evidence.
CONCLUSION
For the foregoing reasons, Globe’s motion for judgment on the agency record is
granted in part and denied in part. Defendant-Intervenors’ motion for judgment on the agency
record is denied. The court hereby remands this matter to Commerce to determine the
appropriate surrogate value for silica fume using product-specific data.
Commerce shall file its remand determination with the court within forty-five
days of this date. Globe and Defendant-Intervenors have eleven days thereafter to file objections
and Commerce will have seven days thereafter to file its response.
/s/ Jane A. Restani
Jane A. Restani
Chief Judge
Dated: This 1st day of October, 2008.
New York, New York.